Adult Guardianship 101

March 17, 2021

Our team here at Ruder Ware has focused previous blogs and other educational materials on ways to avoid adult guardianship (see Related Articles section at the end of my post); however, there may be some instances where guardianship is unavoidable.  Earlier this month, I attempted to simplify the guardianship process in my vlog.  This blog is a continuation and aims to remove the mystery around guardianship for those unavoidable instances.

First, there are two types of guardians; a guardian of the person and a guardian of the estate.  A guardian can be appointed for either or both, the Court does allow co-guardians, when appropriate.  In addition to guardianship, a person may need protective placement.  Protective placement occurs when an individual needs additional support and placement in a facility due to their level of incapacity.

Guardianship is a Court process, and a guardian can only be appointed if a person is deemed to be incapacitated.  The determination of incapacity is made by a physician or psychologist.  If a person’s incapacity will only be temporary, for example if a person is unconscious during surgery and a decision has to be made, a temporary and/or emergency guardian can be put into place for a 60-day period, which can be extended for an additional 60-days for good cause.  All other petitions for guardianship are for permanent guardianship, and can only be removed upon a showing of changed circumstances.  Guardianship is not appropriate for temporary incapacity due to drug or alcohol dependency or other addictive behaviors.

In order to be appointed guardian, the proposed guardian petitions the Court to explain the situation.  As supporting evidence, the physician’s/psychologist’s report is filed.  The Court then appoints a “guardian ad litem,” often abbreviated as “GAL,” to be an independent third party to make sure guardianship is appropriate and also that the proposed guardian is qualified.  The GAL then files his/her report with the Court.  As a final step, there is a Court hearing where the judge reviews the evidence and appoints (or rejects) the proposed guardian.

Sometimes the proposed ward is in opposition to the process.  Sometimes it is because he/she is opposed to the nominated guardian, and sometimes it is because he/she does not believe they are incapacitated.  This opposition can add complexity to the guardianship process, depending on the circumstances.

Once a guardian is appointed, an annual report is filed each year by the guardian, and if protective placement is ordered, an annual review is conducted by the county to ensure the placement is still appropriate and is the least-restrictive setting for the ward.

The Trust & Estates team at Ruder Ware, including our Elder Law team, can assist with any questions you may have on guardianship and whether it is appropriate for your particular situation.

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The content in the following blog posts is based upon the state of the law at the time of its original publication. As legal developments change quickly, the content in these blog posts may not remain accurate as laws change over time. None of the information contained in these publications is intended as legal advice or opinion relative to specific matters, facts, situations, or issues. You should not act upon the information in these blog posts without discussing your specific situation with legal counsel.

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